Illinois Steel Co. v. Dettlaff

Winslow, J. The sheriff’s return upon the summons showed a legal service thereof upon the defendants. An affidavit of default was properly made, and hence the judgment by default in November, 189'T, was duly rendered. Tf in fact the summons never was served upon the defendants, that fact may be shown by motion in the action; and, if that motion be made in due time and upon sufficient proofs, the judgment may be set aside. Upon such a motion, however, the showing that no service was ever made must be “most satisfactory,” in order to overcome the officer’s return of service and justify the vacation of the judgment. Carr v. Commercial Bank, 16 Wis. 52; Toepfer v. Lampert, 102 Wis. 465, 78 N. W. 779. We cannot say that such a showing was made here. Granting that the affidavits of the defendants, standing alone, may be sufficient for that purpose, there are in the present case facts unexplained which tend to throw great doubt upon the statements, and to support the officer’s return. These facts are the making and filing of the affidavits by Andrew Dettlaff in February, 1899, and April, 1900, in which he states that he is “one of the defendants in this action.” These are certainly very persuasive indirect admissions by him that an action had been commenced against him to his knowledge, and the summons served upon him; and the significance of the admissions is not affected by the fact that the motions were made under a mistaken idea as to the condition of the action, or by the fact that the motion was denied. These admissions are entirely sufficient to justify the court in refusing to set aside the service of the summons and vacate the judgment. They strongly cor323 robórate tbe officer’s return, and render tbe affidavits denying service unsatisfactory evidence. If, as we_ must bold, tbe proofs show that due service was in fact made, then tbe order of tbe trial court was plainly right, — no sufficient showing to excuse tbe default was made. By the Court. — Order affirmed.